U.S. v. Nolan

Decision Date13 June 1983
Docket NumberNo. 82-1218,82-1218
Citation700 F.2d 479
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James Thomas NOLAN, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Bertram Polis, Tucson, Ariz., for defendant-appellant.

John M. Roll, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before MERRILL, WRIGHT and TRASK, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Nolan attacks his convictions for federal firearms offenses. He and a co-defendant, Savage, were tried together before separate juries. One jury acquitted Savage of aiding and abetting Nolan's receipt of a firearm. The other convicted Nolan on all counts. We affirm.

FACTS

Nolan was convicted of felonies in Florida state courts in 1966 and again in 1976. Under 18 U.S.C. Sec. 922(h), Nolan, as a convicted felon, is prohibited from receiving a firearm that has been shipped in interstate commerce. Federal law also prohibits possession of firearms by convicted felons. 18 U.S.C.App. Sec. 1202(a)(1).

In 1980, Nolan and his girlfriend, Iris Geoghagen, moved from Florida to Arizona. She left him in April 1981. She testified at trial that he received several guns in Arizona in October and December of 1980. These were the subject of counts one, two, and three of the indictment, later consolidated into counts one and three.

On July 11, 1981, Nolan shot a man outside a Tucson bar. A Tucson police officer witnessed the shooting from a distance and arrested Nolan. State authorities charged him with murder, and count four of the indictment charged him with receiving the gun used in the shooting. This was the same gun he was charged with receiving in count three.

On August 25, 1981, after Nolan had procured bail on the murder charges, federal authorities arrested him at his home for receiving firearms. There they found three more guns in plain view in the living room. Counts five, six, and seven of the indictment charged Nolan with possessing these guns in violation of 18 U.S.C.App. Sec. 1202(a)(1). The trial court, applying the rule of lenity used in criminal cases, consolidated these three counts into count five.

Because of publicity surrounding Nolan and the July 11 shooting, the court took numerous steps to control prejudice at trial. It moved proceedings from Tucson to Phoenix, and restricted the government in its proof on count four, the count relating to the shooting. The court excluded also any references to Nolan's motorcycle gang connections and evidence derived from taps of his phone. Finally, the court allowed Nolan to stipulate to his felony conviction to avoid proof of the details of his Florida offenses at trial.

The court granted several continuances, including one requested by Nolan in order to await the outcome of the state murder trial. After that trial was postponed several times, the court proceeded with the trial of the firearms offenses, despite Nolan's requests for additional continuances. The court also refused his requests to sever count four or to present evidence of self-defense on that count.

The jury convicted Nolan on the four counts remaining after consolidation. He challenges court rulings and the sufficiency of the evidence against him.

I. Failure to sever or continue

Nolan contends first that the court erred when it failed either to grant a continuance or to sever count four.

A. Continuance

We review the refusal to continue the case for abuse of discretion. See, e.g., United States v. Regner, 677 F.2d 754, 757 (9th Cir.1982). There was none here.

Trial was originally scheduled for November 2, 1981. The court granted one continuance at Nolan's request to allow him to prepare additional evidence, and another to await the completion of the related state murder trial, originally scheduled for January 21, 1982. The court reset the trial date two more times until, on February 22, it refused to grant additional continuances. The trial went ahead on March 2, 1982. The state trial, scheduled for January, was delayed repeatedly and finally began in June, 1982.

The district court made every effort to accommodate Nolan until it became apparent that the state trial would not timely proceed. In view of those efforts, we cannot say the court abused its discretion when it refused an additional continuance. We do not expect a district judge to put himself at the mercy of state proceedings whenever there is a somewhat related case in state court.

B. Severance

Nolan contends the court should have severed count four when it decided not to await the outcome of the state trial. To test such a claim we decide whether joinder was "so manifestly prejudicial that it outweighed the dominant concern with judicial economy and compelled exercise of the court's discretion to sever." United States v. Armstrong, 621 F.2d 951, 954 (9th Cir.1980). Joinder remains the rule rather than the exception in criminal cases.

In arguing that the court abused its discretion in declining to sever, Nolan relies on United States v. Bronco, 597 F.2d 1300 (9th Cir.1979). In Bronco, the government joined a charge of a large counterfeiting conspiracy with charges that Bronco passed several counterfeit bills. We concluded that severance was warranted because the conspiracy charge allowed the government to introduce highly prejudicial evidence and because there was little overlapping proof between the conspiracy and counterfeiting charges. Id. at 1303.

Here, the overlap in proof was significant. Ronald Crieger and Iris Geoghagen testified to the interstate movement of the guns involved in counts three and four. Ms. Geoghagen also testified on count one. Although there was no significant overlapping proof between count five and the other counts, Nolan does not suggest that count five should have been severed. Joinder was logical and promoted judicial economy.

We consider next Nolan's claims of prejudice. Nolan asserts he had vital testimony to give relating to counts one, three, and five, but he could not testify on count four because his testimony could be used against him in the state murder trial. He argues that the failure to sever violated his Fifth Amendment "right to testify."

If a defendant seeks severance because he wishes to testify on some counts and not others, he must show that he has important testimony to give on some counts and a strong need to refrain from testifying on those he wants severed. Armstrong, 621 F.2d at 954. Nolan stated he would give exculpatory testimony on all counts, including count four. He wished to refrain from testifying on that count only because of the possible use of his testimony in the subsequent state prosecution.

Although Nolan argues that his Fifth Amendment right was violated, the government never forced him to testify or in any way attempted to coerce his exercise of Fifth Amendment rights. Every time a defendant decides whether to testify, he must weigh the possibility that the testimony he gives may later be used against him. Harrison v. United States, 392 U.S. 219, 222, 88 S.Ct. 2008, 2010, 20 L.Ed.2d 1047 (1968).

In effect, Nolan asks this court to allow him to choose his strategic weapons without regard to the needs of the judicial system. His desire to preserve his options does not meet the Armstrong standard of a "strong need to refrain from testifying." Joinder was proper.

II. Prior Incarceration

Before trial, Nolan stipulated that he had been convicted of a crime "punishable by a term of imprisonment in excess of one year." This made it unnecessary to prove that he was a convicted felon, an element of the crimes with which he was charged under 18 U.S.C. Sec. 922(h) and 18 U.S.C. (App.) Sec. 1202(a)(1).

During the testimony of Iris Geoghagen, the government and the court questioned her regarding Nolan's prison term. Nolan contends this questioning violated the stipulation and produced irrelevant prejudicial evidence which destroyed the fairness of the trial. The government contends that the questioning was necessary to prove that co-defendant Savage, who was tried for aiding and abetting Nolan's receipt of a firearm, knew Nolan had been incarcerated.

The record shows that the court carefully limited questioning of Ms. Geoghagen to issues relating to Savage's knowledge of Nolan's incarceration. The court explored no details of the offenses and revealed no prejudicial details concerning Nolan's record. Regarding Nolan, the jury merely heard repeated what it already knew: that he had been convicted of a crime punishable by imprisonment for longer than a year.

The record shows also that the government warned before trial that the stipulation did not relieve it of the burden of proving Savage's knowledge of Nolan's felony record. The questioning neither caught the defense by surprise nor was it irrelevant. It concerned an element of the government's case against Savage. The court properly allowed the prosecution to pursue this line of questioning of Ms. Geoghagen.

III. Self Defense under 18 U.S.C. Sec. 922(h)
A. Exclusion of the Defense

Nolan argues that he was entitled to present evidence of self defense to charges that he received a weapon during the July 11 shooting. The trial court ruled that self defense was not a defense to charges under 18 U.S.C. Sec. 922(h) and that, even were it a defense, Nolan had not pleaded facts sufficient to raise it.

Until recently, no federal court had allowed a self defense claim to charges of receipt or possession of firearms. Defendants have labeled the defense duress, coercion, necessity, or self defense. 1 Regardless of the label, the courts have ruled that federal firearms laws impose something approaching absolute liability. United States v. Hammons, 566 F.2d 1301, 1303 (5th Cir.), ...

To continue reading

Request your trial
110 cases
  • U.S. v. Castillo
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 1, 1989
    ...jury. We review a district court's decision not to require that testimony be read to the jury for abuse of discretion. United States v. Nolan, 700 F.2d 479, 486 (9th Cir.), cert. denied, 462 U.S. 1123, 103 S.Ct. 3095, 77 L.Ed.2d 1354 (1983); United States v. King, 552 F.2d 833, 850 (9th Cir......
  • U.S. v. Epley
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 24, 1995
    ...to the testimony. Padin, 787 F.2d at 1076 (citing United States v. Varsalona, 710 F.2d 418, 421 (8th Cir.1983)); United States v. Nolan, 700 F.2d 479, 486 (9th Cir.), cert. denied, 462 U.S. 1123, 103 S.Ct. 3095, 77 L.Ed.2d 1354 (1983). The second is that the testimony reviewed by the jury m......
  • Comer v. Schriro
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 13, 2006
    ...testimony to give on some counts and a strong need to refrain from testifying on those he wants severed." See United States v. Nolan, 700 F.2d 479, 483 (9th Cir.1983). Applying Nolan to this case, we hold that Comer was not entitled to severance based on his Fifth, Sixth, and Fourteenth Ame......
  • United States v. Price, 15-50556
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 12, 2019
    ...is disfavored because of the emphasis it places on specific testimony and the delay it causes in the trial." United States v. Nolan , 700 F.2d 479, 486 (9th Cir. 1983) (citation omitted). During deliberations, the jury asked for a transcript of Price's FBI interview and of A.M.’s testimony.......
  • Request a trial to view additional results
2 books & journal articles
  • Table of Cases
    • United States
    • ABA Antitrust Library Antitrust Evidence Handbook
    • January 1, 2016
    ...States v. Newell, 315 F.3d 510 (5th Cir. 2002), 25, 87 United States v. Nobles, 422 U.S. 225 (1974), 95, 104, 119 United States v. Nolan, 700 F.2d 479 (9th Cir. 1983), 138 United States v. O’Shea, 662 F. Supp. 2d 535 (S.D. W.Va. 2009), 157 United States v. Ogba, 526 F.3d 214 (5th Cir. 2008)......
  • The Privilege Against Self-Incrimination
    • United States
    • ABA Antitrust Library Antitrust Evidence Handbook
    • January 1, 2016
    ...prosecution. Malloy v. Hogan, 378 U.S. 1, 8 (1964); Harrison v. United States, 392 U.S. 219, 222 (1968); see also United States v. Nolan, 700 F.2d 479, 483 (9th Cir. 1983); In re Folding Carton Antitrust Litig., 609 F.2d 867, 871 (7th Cir. 1979); In re Master Key Litig., 507 F.2d 292 (9th C......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT